REASSESSMENT OF CREDIBILITY OF WITNESSES FOR THE PROSECUTION

I have already dealt with the credibility of the prosecution witnesses at the close of the case for the prosecution. A reassessment of their `credibility and the credibility of the Defence witnesses on the whole of the evidence adduced is to a large extent interwoven with the defence evidence advanced. This will become apparent when I consider whether the prosecution has proved its case against the accused beyond reasonable doubt. However, the credibility of Ummi and Azizan requires immediate consideration in the light of certain evidence that was adduced.

Ummi

The Defence called evidence in an attempt to show that Ummi affirmed Exhibit D90 voluntarily. If successfully proved this will have a bearing on the credibility of Ummi. It will be recalled that she said in her evidence that the exhibit was prepared by a lawyer called Yeoh and that she was pressured by her brother Azmin through Dato Sng Chee Hua to affirm it. In order to establish the voluntariness of this exhibit the relevant evidence adduced by the Defence is that of Azmin, Nor Azman and Ngui Kee Heong. Dato Sng Chee Hua was not called as a witness. Neither was lawyer Yeoh called on the ground as stated by the Defence,

"We were proposing to call lawyer Yeoh Chong Keong who was the lawyer involved in the preparation of D90. In view of Court’s ruling under Sections 126 and 127 of Evidence Act concerning professional privilege we are unable to call him for the same reasons." Azmin said that he met Ummi on 30 June 1998. On being asked whether she mentioned Exhibit D90 at this meeting he said, "Ummi ada menyebut kepada saya bahawa kalau saya tidak percaya dengan pengakuan-pengakuan beliau selama dua kali bahawa beliau tidak menulis surat berkenaan maka bolehlah saya rujuk kepada surat akuan sumpah (D90) yang telah dibuat oleh beliau beberapa hari sebelum perjumpaan dengan saya." He was then asked, "Question : Did Ummi show you D90?

Answer : Ya."

 His further evidence on this issue runs as follows: "Question : Did you have anything whatsoever to do with D90?

Answer : Tidak sama sekali kerana semenjak surat disebar pada Ogos, 1997 inilah kali pertama, iaitu 26.6.98, saya berjumpa dengan dia.

Question : Did you use any influence or did you put any pressure on her to prepare D90 through Dato Sng?

Answer : Again I would like to repeat that she is a compulsive liar.

Question : Did you or did you not?

Answer : Saya tidak mendesak Ummi.

Question : Adakah kamu mendesak Ummi melalui Dato Sng?

Answer : Saya tidak mendesak Ummi melalui sesiapa pun.

Question : Do you know the lawyer who prepared D90?

Answer : Tidak.

Question : Did you accompany Ummi to whoever prepared this statutory declaration?

Answer : Tidak."

 In cross-examination Azmin denied that his evidence relating to Exhibit P14 and the fact that Ummi told him that she did not write it are not true. Nor Azman said that he drove Ummi to the office of lawyer Yeoh at her request. She had wanted to appoint the lawyer as her solicitor. He did not know the purpose for which she appointed him. He did not see anybody pressurising Ummi in the office of the lawyer. Nor did she appear to be pressurised. When learned counsel began to question Nor Azman on Exhibit D90 I informed him that the line of questioning may infringe Section 126 of the Evidence Act 1950 as Nor Azman was in the position of an agent of Ummi. In saying that I had in mind Wheeler v Le Merchant 17 Ch D 675 where Jessel MR said, "The actual communication to the solicitor is of course protected whether it is made by the client in person or is made by an agent on behalf of the client …" Learned counsel merely said that Section 126 does not apply as Nor Azman was not an agent or clerk of the solicitor. As he did not convince me that Nor Azman was not the agent of Ummi nor that any evidence that was sought to be elicited from the witness related to any communication made by him to the solicitor with regard to Exhibit D90 I disallowed the line of questioning. Ngui Kee Heong was the Commissioner for Oaths before whom Exhibit D90 was affirmed by Ummi. On 23 June 1998 he went to the office of Dato Sng Chee Hua at the request of the secretary to the latter. When he arrived there Exhibit D90 was in the midst of being drafted by lawyer Yeoh Cheong Keng in Dato Sng Chee Hua’s room. Ngui Kee Heong had to wait for about 20 — 30 minutes for it to be prepared. Ummi was also present there. Exhibit D90 was then affirmed and attested. He said that Ummi signed it after she had read it and was satisfied. He said that she affirmed the exhibit willingly and voluntarily.

As I said in an earlier part of the judgment the burden is on the Defence to establish that Exhibit D90, an exhibit tendered by the Defence, was affirmed voluntarily by Ummi in the light of her evidence that she was pressurised into affirming it. The first observation to be made on the evidence led by the Defence is that the exhibit came into existence under very strange circumstances. It was executed in the office of Dato Sng Chee Hua. It was prepared by the solicitor, not in his office, but in the office of Dato Sng Chee Hua. Ngui Kee Heong was summoned there to attest it. This lends weight to Ummi’s evidence that she was pressurised to affirm the exhibit. The Defence did not adduce any evidence of what transpired between Ummi and Dato Sng Chee Hua in the latter’s office when Exhibit D90 was affirmed. This is very significant as it is her contention that it was Dato Sng Chee Hua who communicated Azmin’s pressure to her. Dato Sng Chee Hua is therefore a material witness who ought to have been called by the Defence. If he had been called he would have thrown light on Ummi’s allegations. However, he was not called as a witness even though the Defence had accepted him when he was made available by the prosecution. The general rule is that Section 114(g) of the Evidence Act 1950 does not operate against the defence but where there is an onus on it, as in this instance, to prove an issue the presumption may be invoked (see Baharom v PP (1960) MLJ 249, Choo Chang Teik v PP (1991) 3 MLJ 423). I therefore hold that an adverse inference should be drawn against the Defence for its failure to call Dato Sng Chee Hua as its witness in order to prove the voluntariness of Exhibit D90. The evidence of Ngui Kee Heong to the effect that Ummi affirmed the exhibit willingly and voluntarily does not carry much weight as he would not know what preceded her affirmation of the exhibit. The evidence of Azmin on this issue is in two parts. The first is his evidence of what Ummi allegedly told him on 30 June 1998. This was not put to Ummi when she was being cross-examined neither was she re-called for that purpose. In such circumstances the evidence of Dato Sng Chee Hua, if adduced, and found to be favourable, would have been of assistance to the Defence. Thus I am unable to give any weight to this part of the evidence of Azmin. The second is his evidence that he did not use any influence or pressure on Ummi to prepare Exhibit D90 through Dato Sng Chee Hua. As I said earlier Dato Sng Chee Hua ought to have been called to explain this allegation as he was the one who was supposed to have conveyed it to Ummi. In view of the adverse inference that I have drawn against the Defence for the failure to call him as a witness I am unable to give any weight to this part of Azmin’s evidence also. In the premises it is my view that the Defence has not established, on a balance of probabilities, that Exhibit D90 was affirmed by Ummi voluntarily.

Ummi had, when under cross-examination, denied that she had sent a letter to YAB Prime Minister prior to Exhibit P14A, B and C. With regard to this alleged letter the accused said in his evidence,

"P14 was the first time that Ummi made allegations against me. I was handed another letter of allegations. The allegations in that letter were shorter and milder. Part of the allegations was against Ummi’s brother Azmin for him not helping her. I read that letter. It was handed to me by the PM. He told me to read it and to destroy it … I brought the letter to my office, read it and because Azmin is Ummi’s brother I confided in him. I asked him to shred the letter after reading it. He told me that he had shredded it." The accused’s evidence does not show that the letter given to him by YAB Prime Minister was written by Ummi. In fact he has clearly stated that Exhibit P14 was the first time that Ummi had made allegations against him. However, in a later part of his evidence he said, "Prior to P14 in July 1997 I received a letter purportedly written by Ummi … " Despite the change in evidence it remains as a letter "purportedly" written by Ummi and not one actually written by her. It will therefore be observed that the accused has not said that the letter was written by Ummi. Learned counsel himself referred to it as being "purportedly" written by Ummi when he examined Azmin on the issue by asking "Are you aware of a letter purportedly written by Ummi to the Prime Minister in 1997?" There is therefore no justification for Azmin to say it is Ummi’s letter when he said that it was her letter to YAB Prime Minister containing allegations against the accused. Thus I find this part of Azmin’s evidence to be not credible. In such circumstances the failure by the prosecution to cross-examine him on this part of his evidence does not amount to an acceptance of it. Accordingly, I am unable to accept Azmin’s evidence that it was Ummi’s letter and hold that she did not write any letter to YAB Prime Minister prior to Exhibit P14A, B and C.

The result is that Ummi’s credit has not been affected in any way, particularly by the evidence of Azmin, on the issues under consideration.

Azizan

Azizan said that he was pressured into affirming Exhibit D55. I have set out in some detail his evidence on this issue in an earlier part of the judgment. He had testified that he was pressured into affirming the exhibit by Rahim King and MaAmin. I have ruled as irrelevant his complaint against Sukdev Singh. What requires scrutiny is the testimony of Azizan that he did not appoint Sukdev Singh as his solicitor for the preparation of Exhibit D55 while the latter said otherwise. In my opinion what appears to be a contradiction is not really so bearing in mind the circumstances in which Sukdev Singh was appointed. I shall advert to this issue later. In an attempt to show that Exhibit D55 was affirmed voluntarily the Defence called MaAmin, Sukdev Singh and Ngui Kee Heong. Rahim King was not called.

In his examination-in-chief MaAmin said that Azizan and he were like brothers. In the first week of July 1998 Azizan asked him to follow him to the office of a lawyer. The lawyer is a sikh. He had followed Azizan to the lawyer’s officer only once. He had not met the lawyer prior to that. He followed Azizan into the lawyer’s office. Azizan and the lawyer had a conversation and he did not give any instructions to the lawyer on behalf of Azizan. The accused did not at anytime ask him to see or influence Azizan in any way. He also did not threaten Azizan. If this was the only evidence of MaAmin I would have had little difficulty in rejecting Azizan’s evidence on the circumstances in which he affirmed Exhibit D55. But that was not to be. Contrary to his earlier evidence that he followed Azizan to the lawyer’s office only once MaAmin narrated another instance when he went to the lawyer’s office in a later part of his examination-in-chief. Worse was to come. In cross-examination he said that he had been to the lawyer’s office three to four time. He then said that in early July 1998 Rahim King, a friend of his, asked him to come to Restaurant Tom Yam in Kuala Lumpur. There Rahim King introduced him to Azizan. That was the first time he met Azizan. MaAmin said that Rahim King gave him a small sum of money for keeping an eye on Azizan. After the meeting the three of them went to the sikh lawyer’s office. In the lawyer’s office Rahim King and Azizan conversed with the lawyer in English. With regard to the connection between the statutory declaration affirmed by Azizan and Rahim King the cross-examination of MaAmin runs as follows:

"Question : Adakah kamu tahu bahawa En Rahim King ada menyuruh Azizan membuat satu surat akuan sumpah?

Answer : Tidak tahu.

Question : Saya mengatakan kepada kamu bahawa kamu tahu bahawa Rahim King ada menyuruh Azizan membuat satu surat akuan, betul atau tidak?

Answer : Saya tidak tahu dan tidak pasti kerana saya melihat Azizan dan Rahim King bercakap sahaja.

Question : Selain daripada waktu itu pada masa-masa yang lain adakah kamu tahu Rahim King telah menyuruh Azizan membuat satu surat akuan sumpah?

Answer : Tahu.

Question : Pada bila masa yang kamu tahu bahawa En Rahim King telah menyuruh En Azizan membuat satu surat akuan sumpah?

Answer : Tarikhnya saya sudah lupa. Tempatnya ialah di verandah rumah Rahim King. Itu pun mereka berdua sahaja yang bercerita. Yang saya melihat dari jarak sedikit daripada mereka berdua. Hanya saya melihat Azizan memegang sekeping kertas dan mereka berbual di dalam Bahasa Inggeris. Saya juga tidak dapat dipastikan bahawa itu adalah surat yang dikatakan."

 MaAmin was cross-examined on several telephone conversations between him and Rahim King. As a result of a telephone call from Rahim King at the end of July 1998 MaAmin made several attempts to contact Azizan. He managed to contact Azizan in his office in Alor Gajah. Azizan seemed to know why MaAmin came to see him. Azizan was angry. MaAmin was not re-examined on most of the evidence he gave in cross-examination.

It is my view that Azizan became a client of Sukdev Singh through the introduction of Rahim King. This is evident from the fact that it was Rahim King who took Azizan to the lawyer’s office. MaAmin was aware that Rahim King had asked Azizan to prepare a statutory declaration though he was not sure whether the paper that Azizan was holding in Rahim King’s house on a particular occasion was the document. The logical and reasonable inference to be drawn from these circumstances is that Rahim King was the person behind the preparation of the statutory declaration and had asked Sukdev Singh to prepare it for Azizan. To that extent Sukdev Singh is right when he said that Azizan was his client. Azizan is also right when he said that he did not appoint the solicitor in view of the fact that it was Rahim King who took him to the solicitor’s office coupled with the fact that it was Rahim King who was behind the preparation of the statutory declaration. Be that as it may, the evidence of MaAmin given in cross-examination synchronises with the evidence of Azizan with regard to the pressure exerted on him by Rahim King and MaAmin to affirm Exhibit D55. My first observation is that I do not accept MaAmin’s evidence that he and Azizan were like brothers. MaAmin was keeping an eye on Azizan for a certain purpose. He was paid money by Rahim King to keep an eye on Azizan. This is not what brothers do to each other. Thus the evidence of MaAmin on the voluntariness of Exhibit D55 is suspicious. It becomes clear when the circumsances in which it was prepared are considered. The key player behind the preparation of Exhibit D55 was Rahim King. He kept in touch with MaAmin to ensure that Azizan goes to the lawyer’s office. He had a hand in the affirmation of the statutory declaration by Azizan. This is made evident by the connection between Rahim King and the statutory declaration as testified by MaAmin. In view of the material role played by Rahim King the Defence ought to have called him as a witness to explain the evidence of MaAmin. The failure to do so compels me to draw an adverse inference against the Defence on the issue of establishing whether Exhibit D55 was affirmed voluntarily. Ngui Kee Heong’s evidence is of no assistance in making a ruling on this issue as he would not know the events that led to the affirmation of Exhibit D55. In any event the role played by Rahim King and MaAmin are consistent with the evidence of Azizan that he was pressured by them to affirm Exhibit D55. In the circumstances it is my finding that the Defence has not established, on a balance of probabilities, that Exhibit D55 was affirmed by Azizan voluntarily.

As I said in an earlier part of the judgment Exhibits D55 and D90 were tendered in evidence by the Defence in mysterious circumstances. That leads to an inquiry into the identification of the person who was behind the preparation of these exhibits. The evidence of Mohd Faiz reveals that he was acting for the accused in a defamation suit over the publication of Buku 50 Dalil at about the same time the exhibits were affirmed. Mohd Faiz had a meeting with Azizan and Sukdev Singh. Sukdev Singh is the solicitor who prepared Exhibit D55. The inference to be drawn from these facts is that Mohd Faiz would have had an interest in a document like D55 in the preparation of the suit for his client, the accused. This must be read with the evidence of Azizan in cross-examination when he said,

"Rahim King dan MaAmin adalah kawan tertuduh dan bukan kawan saya." And later, "Saya telah dipaksa untuk menandatangani IDD54 setelah sering dihubungi oleh MaAmin, Rahim King kerana mereka adalah orang-orang suruhan tertuduh." It is therefore clear that Rahim King and MaAmin were friends and "orang-orang suruhan" of the accused. The further inference to be drawn from the circumstances of the case, that is to say, that the accused was preparing a defamation suit in respect of Buku 50 Dalil; that Buku 50 Dalil contained a reproduction of Exhibits P14B and C; that Rahim King and MaAmin were friends and "orang-orang suruhan" of the accused; the part played by Rahim King and MaAmin in getting Azizan to affirm Exhibit D55; that Mohd Faiz was acting for the accused in the defamation suit and that he had a meeting with Azizan and Sukdev Singh and the fact that the originals of Exhibits D55 and D90 were in the possession of the Defence, is that the person who wanted the statutory declarations was none other than the accused himself for use in the defamation suit. This finding is necessary in order to determine whether it was the accused who wanted to see Azizan or whether it was the other way round when they had a conversation on Buku 50 Dalil in June 1998.

Azizan said that it was the accused who wanted to see him through ASP Zull Aznam in June 1998. The accused said that it was Azizan who wanted to see him. The Defence sought to support this part of the evidence of the accused through ASP Zull Aznam, Mohamed bin Ahmad and Abdullah Sani bin Said ("Abdullah Sani"). With regard to the supporting evidence of ASP Zull Aznam on this issue the answer of what was put to Azizan in cross-examination is this:

"Saya tidak bersetuju bahawa sebenarnya sayalah yang menghubungi ASP Zull Aznam kerana saya hendak berjumpa tertuduh berkenaan satu hal peribadi." ASP Zull Aznam said that in June 1998 he was informed by Abdullah Sani that Azizan had contacted him to get an appointment to see the accused. ASP Zull Aznam conveyed this message to the accused who reluctantly agreed to see Azizan. When asked whether Azizan came to see the accused ASP Zull Aznam said, "Setelah dipersetujui oleh Dato Seri Anwar saya telah meminta Abdullah Sani untuk menghubungi Azizan dan seterusnya menetapkan tarikh, waktu dan tempat pertemuan tersebut." This shows that there is a shift from what was put to Azizan which was that it was Azizan who contacted ASP Zull Aznam. On the other hand ASP Zull Aznam said that Azizan approached him through Abdullah Sani and that he had told Abdullah Sani to contact Azizan after the accused had agreed to see him. What Abdullah Sani said on this issue is of interest and it is this: "Dalam bulan June 1998 Azizan ada menghubungi saya melalui telefon. Dia memberitahu saya bahawa dia hendak berjumpa dengan Dato Seri Anwar. Azizan menelefon saya di rumah saya. Azizan berkata dia hendak berjumpa dengan Dato Seri. Azizan berkata dia ada masalah sedikit. Dia tidak memberitahu masalahnya. Azizan menelefon saya kerana dia kenal dengan saya. Saya menyuruh Azizan menghubungi Zull Aznam. Saya tidak tahu sama ada Azizan ada menghubungi Zull Aznam. Saya ada memberitahu ASP Zull Aznam berkenaan dengan permintaan Azizan. Saya tidak tahu sama ada Azizan ada datang berjumpa dengan Dato Seri selepas itu." Thus after Abdullah Sani had informed ASP Zull Aznam about the request of Azizan to meet the accused he did not know what happened thereafter. His evidence does not show that ASP Zull Aznam asked him to contact Azizan after the accused had agreed to see him. This contradicts the evidence of ASP Zull Aznam. With regard to the evidence of Mohamed bin Ahmad Azizan had agreed in cross-examination by the Defence that he had met this person in relation to a contract for one of his friends. The testimony of Mohamed bin Ahmad that Azizan had told him that he wanted to see the accused at that meeting was not put to Azizan in his cross-examination. Mohamed bin Ahmad’s evidence therefore loses its value. In the circumstances, I am unable to accept the evidence of these supporting witnesses by virtue of matters not being put to them and the contradictions amongst themselves. I am also unable to accept the accused’s evidence on this issue. He said in his evidence that Azizan contacted ASP Zull Aznam and Abdullah Sani to see him on some business matters. When he agreed to meet Azizan he had made it clear that there should be no discussion on business matters. If no business matters could be discussed I am unable to comprehend why the accused agreed to see him given the allegations made by Azizan against him. It must be remembered that at that point of time the allegations made in 1997 had re-surfaced as part of Buku 50 Dalil. Reports had been made on the book. Upon a consideration of the timing of the meeting between Azizan and the accused, the unsatisfactory evidence of the supporting witnesses on this issue and the circumstances of the case it is my firm finding of fact that it was the accused who wanted to meet Azizan. With regard to the meeting between the accused and Azizan on 18 August 1997 it is also my finding that it was the accused who wanted to see Azizan. My finding is based on the circumstances of the case and two other reasons. Firstly, Azizan would not have volunteered to see the accused in view of his mental and physical condition at that time. Secondly, if in fact the conversation that took place at the meeting was as described by the accused I do not see why Azizan should write Exhibit P17 just prior to the meeting with such great reluctance.

The result is that the credibility of Azizan has not been affected by the Defence evidence that I have referred to.

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